Ideology and the Jus Ad Bellum: Justice in the Initiation of War
Author(s): James T. Johnson
Source: Journal of the American Academy of Religion, Vol. 41, No. 2 (Jun., 1973), pp. 212-228
Published by: Oxford University Press
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Ideology and the Jus Ad Bellum:
Justice in the Initiation of War
JAMES T. JOHNSON
MORALLY
andpoliticallyadequatepositionon when it is allowable,in
the final analysis,for a nation to resort to war does not exist today in
either internationallaw or authoritativereligious teaching. In the first
this
of
paper I wish to demonstratethis point. In the second part I shall
part
the
nature
of this problem and its historical and theoreticalroots. In
explore
the final section I shall proposea way to a position on the right of resort to war
more adequatethan that which now obtains.
I
A contemporaryFrench analyst,Henri Meyrowitz,has complained that in
twentieth-centuryinternationallaw the concept of justice has been lost from the
jus ad bellum.1 Accordingto his charge,when two or more nations today stand
face-to-facein a dispute seriousenough that all concernedare readyto fight over
it, internationallaw does not admit as a relevantconsiderationthe justice or injustice of the claims of the disputants. If they do at last end up in a military
contest to decide their quarrel, internationallaw-expressed in the KelloggBriand Pact and the United Nations Charter- focuses only on the question of
who first resorted to military force. That is, in internationallaw as it exists
today only the order of use of force in disputes between nations is relevant in
deciding which party is in the right (or in traditionallanguage,which side has
a jus ad bellum, a right to make war). First resort to force is always denied;
second use alwaysis permitted. First use is always agression,second use always
defense. This, arguesMeyrowitz,amountsto denial of the claims of justice in
deciding whether a nation has a right to use military force against another.
JAMEST. JOHNSON
(Ph.D., Princeton) is AssistantProfessorof Religion at Douglass
College, Rutgers University. He is author of A Society Ordainedby God (Abingdon,
1970), a studyof EnglishPuritanmarriagedoctrine,and severalarticlesin learnedjournals.
The present article was presentedas an address,in slightly different form, in the AAR
EthicsSectionat the InternationalCongressof LearnedSocietiesin the Field of Religion,
Los Angeles, September,1972.
'Henri Meyrowitz,Le Principede l'dgalitedes belligdrentsdevantle droit de la guerre
(Paris: A. Pedone, 1970), p. 144, n. 5.
JAAR XLI/2 (June 1973) @ AAR
IDEOLOGYAND THE JUS AD BELLUM
213
The conclusionsMeyrowitz reaches do not, of course, stand without challenge. It must certainlybe admittedthat some controversyexists as to whether
nations today considerthemselvesbound by a proscriptionof (aggressive) first
strike and acceptanceof (defensive) second strike, no matter what the legal
documentscited seem literallyto say. Everyoneknows that wars are still being
fought in the world, and no effective sanctions seem to be employed against
those who are by the first-strikecriterion "aggressors."To cite two recent examples,why has Israelnot been made to pay somehow for her preemptivestrike
against the Arab countriesin the Six-Day War? Again, why has India not been
called before the bar of internationaljustice for invading Bangla Desh late in
1971? Julius Stone, an Australian analyst of internationallaw, argues from
such example as these that de facto the first strike/second strike dichotomy is
not todayrecognizedby nationsas imposing binding criteriaon their use of military force. But, interestinglyenough, this writer does not explicitly deny that
the letter of the Kellogg-BriandPact and the Charterseek to impose these criteria; rather,he argues that these documentscannot seriously mean what they
appear to say. If, Stone reasons,these two internationalagreementsreally are
intended to outlaw first resort to force in all cases while accepting second use
in defense against attack,it would be analogousto a domestic legal system including only laws againstmurderand trespass. This is palpablyabsurd;so international law on the resort to war cannot be understoodsimply in terms of the
distinction between first resort to force and second,whateverthe agreementsin
question seem literally to say.2
The debate in juristic circles, that is, revolves about whether international
agreementsnow in force mean what they say or mean something else because
what they say is somehow absurd. I would like to suggest a third option: that
they mean what they say, and that what they say is inadequateboth politically
and morally. The reasonon both fronts is, to use the phraseof the Frenchcommentatorcited earlier,that justice has been left out of accountin framingthe jus
ad bellum. To restoreconsiderationsof justice to deliberationabout the right
of resortto war in defense of nationalclaims is, then, a problemwhich ought to
commandattention from theorists in internationalrelations in the future.
But is this problem with the conception of the right of resort to war one
which also appears in practicalstatecraft,and is it one, to speak to our most
immediateconcerns,which arises in contemporaryreligious thought on war as
well? The answerto both these questions is yes, and to explore how the problem shows itself in the two cases will take us furtherin understandingjust what
it means to say there is no justice in the contemporaryjus ad bellum.
In the first place, what about practicalstatecraft? The first-strike/secondstrike dichotomywhich first appearsin the Kellogg-BriandPact and is further
SJulius Stone, Aggression and World Order (Berkeley and Los Angeles: University of
California Press, 1958), p. 71. In this locus Stone is criticizing a Soviet draft definition
of "aggression" which states essentially the narrow, literal reading of the contemporary jus
ad bellum.
214
JAMEST. JOHNSON
elaboratedin the United Nations Charterforms the bedrock on which much
Americanpolicy since World War II rests. One of the most thoroughand persuasivestatementsof this American"justwar doctrine"(in his phrase) is Robert
Tucker'sbook, The Just War.3 Tucker cites as examples of such policy President Eisenhower'scondemnationof the use of force by Great Britain, France
and Israel against Egypt in the 1956 Suez Canal crisis and, further,the explicit
repudiationof preventive nuclear war by two Secretariesof State in different
Administrations,Dean Acheson under Truman and John Foster Dulles under
Eisenhower. Reinhold Niebuhr, in The Structureof Nations and Empires,also
comments critically upon the American posture during the Suez crisis and we
might profitablydwell on this incident for a moment. Niebuhr notes that the
President"paid tribute"to France and Britain for heeding the UN resolution
calling on them to get out of Egypt "forthwith." Still, Niebuhr continues,Eisenhower "failed to record" that it was American and Russian power aligned
against them which forced them out, not their concern for "worldorder." But
"worldorder,"as narrowlyconceivedby the President,was his motive for acting
as he did. In Eisenhower'swords,
If the United Nations once admits that internationaldisputescan be settled by
force then we will have destroyedthe very foundationof the organizationand
our best hope of establishinga world order.'
In Eisenhower'smind only the fact that Britain, Franceand Israel had initiated
armed action against Egypt mattered. What claims they had to protect, whatever rights they might have needed to hold fast, what these nations did in resorting to force was wrong per se. Here is the condemnationof first use of
force in a nutshell.
As for the second example mentioned above, repudiation of nuclear first
strike, there are without doubt many reasons why nuclear war should not be
initiated. But the per se evil of first use of force is not one of them. The moral
problemwhich ariseswhen nucleardeterrenceis built on a policy of condemnation of the first strikeand acceptanceof secondcan be judged by the tone of the
apologetic,much heard a decade ago, for massive nuclearretaliation: anything
goes, once the first enemy missile is in the air; when wronged, hit back with
everythingavailable;the wrongful first use of force has set us free to fight total
war in retaliation. This is the essenceof what Tuckerdescribesas the peculiarly
American"justwar doctrine."
That such policy is not simply a relic of the Eisenhowerage ought to be
apparent.Nuclear deterrencepolicy is still based,not only here but in the USSR
as well, on the capacityto deliver a massivesecondstrike. The SALTagreements
make the policy mutual,if somewhatmacabre,by ruling out all but a few defen8Robert W. Tucker, The Just War: A Study in ContemporaryAmerican Doctrine
(Baltimore: Johns Hopkins Press, 1960).
'Reinhold Niebuhr, The Structureof Nations and Empires (New York: Scribner's
1959), p. 16, quoting from an articlein The New York Times, February21, 1958.
IDEOLOGYAND THE JUS AD BELLUM
215
sive armaments. Again, when India rolled into Bangla Desh a voice from the
White House was heard to complain that this first startingof tanks and firing
of guns, this penetrationof the Bengali frontier showed India to be the aggressor." The inconsistencybetween this complaint and general support of Israel
for her presumptivestrike in the Six-Day War is notable, for it shows that at
least in some instances the United States can officially act as if contemporary
internationallaw on the right to resortto war is as unworkableas many theorists
have argued. But the support of Israel is exceptional. The general United
States policy, in Administrationafter Administration,has been that first use of
force constitutesaggression. Finally, that it is not mererly an American aberration generallyto construethe jus ad bellum so narrowlyis illustratedby French
Presidentde Gaulle'scondemnationof what he called "the opening of hostilities
by Israel"in the Six-Day War, a condemnationbacked up by the subsequent
French arms embargotoward Israel." Here the firing of the first shot became
the criterion,as it was, at least ostensibly, for Eisenhowerin 1956-57 and for
the unnamedWhite House spokesmanin 1971.
But where, someone may ask, is the problem? It is precisely in the tunnel
vision imposed by the first-strike/secondstrike dichotomy. When first use of
force is repudiatedper se and second use embracedequally per se, no other
factors are deemed relevant. Were the Arab States preparingfor war against
Israel? No matter; Israel struck first. Had Pakistaniforces been firing across
the border into India, and were Bengali refugees causing disorder, suffering
and expense to India? No matter,India first crossedthe frontierwith her forces.
When it is the use of force which is repugnant,a definite advantageis given to
nations which are able to assert their will against others by means other than
militaryattack- by means such as subversion,propaganda,economic arm-twisting, or supportof insurgents. This is what is meant by the absenceof justice in
the contemporaryjus ad bellum.
Once again, though, is this a problem in theological ethics as well? There
is not time here to documentfully how widespreadamong religionistswho write
on war is the same narrow-and unjust-construal of the jus ad bellum found
in internationallaw. I wish instead to demonstratethis point by reference to
Catholic doctrine on war as it has developed since 1870. This is, after all, a
source which might confidently be expected to hold tightly to all the criteria
for just resort to war given in classic just war doctrine,and not simply reduce
the criterionof just cause to a question of first use of force vs. second. I wish
briefly to treat two "landmark"documents,then the positions of the last three
popes.
5"They Didn't Want This Tragic War," The New York Times, December 12, 1971,
sect. 4, p. 1. Similarly,George Bush, United StatesAmbassadorto the United Nations,
spoke there of India's "aggression." This term was later disowned by a White House
spokesmanas "not . . . authorizedfor official use." Still there remainedno doubt as to
the unofficialview of the Administration.
SNoted by Meyrowitz,p. 148, n. 10, who comments,"Generalde Gaulle chose . .
the grossestcriterionfor the illicit use of force: the first cannon shot."
216
JAMEST. JOHNSON
Catholic preoccupationwith the inherent evil of "modernwar" begins not
with the atomic age but with the rise of large standing armies composed of
conscripts and armed with improved "conventional"weapons (such as rifled
hand guns and artilleryof great accuracyand far higher destructive potential
than old-style muskets and cannon). This was, in the late nineteenth century,
"modern"war. Our own Civil War and the Franco-Prussianwar exemplify
such conflict. Revulsion at the very natureof such war sets a tone which Catholic teaching maintains right up to the present. Even the Postulata on war
presentedto Vatican I in 1870 (the year of the Franco-PrussianWar) sounds
remarkablyup-to-date,though it is a hundredyears old:
The presentconditionof the world has assuredlybecomeintolerableon account
of huge standing and conscriptarmies. The nations groan under the burden
of the expense of maintainingthem. The spirit of irreligionand forgetfulness
of law in internationalaffairsopen an altogetherreadierway for the beginning
of illegal and unjust wars,or ratherhideous massacresspreadingfar and wide.'
The bishops who signed this document suggest that the very size of national
military establishments,not excluding, of course, the propensityto make them
"pay"for themselvesthrough conquest,leads to wars which the Churchcannot
treat as just. Such "hideousmassacres"as these forces make possible would be,
in the opinion of these bishops, out of all proportionto the good which might
be expected from them. If the presuppositionsof this Postulata are correct,
under modern conditions--meaning here only large conventional forces-no
jus ad bellum can exist.
I wish next to draw attention to the conclusions of the Conventus of Fribourg, in 1931. In the intervening period both Hague arms-limitationsconferenceshave been held, World War I has been fought, the League of Nations
formed,and the Kellogg-BriandPact signed. It is the consensusof the Fribourg
theologiansthat the very existenceof an internationalorder,even though a most
imperfect one, strictly limits the right of individual states to make war. Since
the Leagueof Nations exists, they reason,
. a war declaredby a State on its own authoritywithout previous recourse
to the internationalinstitutionswhich exist cannot be a lawful social process.
It would be repugnantto the dictatesboth of public law and of conscience....
A fortiori, modern war, that is war as understoodand waged nowadays,could
not be a legitimate social process.8
They continue by condemning such war as necessarilydisproportionate.
The right of self-defense is not taken away by the Fribourg theologians,
though they do distinguishbetween "lawfuldefense"and "necessity".This latter
concept,which they condemn,encompasseswar for the "so-calledvital interestsof
'Cited from John Eppstein,The CatholicTraditionof the Law of Nations (Washington: CatholicAssociationfor InternationalPeace, 1935), p. 132.
8Ibid., p. 140.
IDEOLOGYAND THE JUS AD BELLUM
217
the country"and "impliesan unlimitedexpansionof sovereignty[and]all the
enterprisesof exaggeratednationalism,which lusts for conquestand glory."'
In sum, the theologiansof the Conventusof Fribourgreassertthe uneasiness
expressedin the 1870 Postulatawith modernwar as such, termingit inconceivableas a lawfulsocialprocess,but they qualifythe right of resortto war
Pact: permitting
alongthe linestakenthreeyearsearlierin the Kellogg-Briand
self-defense
whileoutlawingall offense.
The Postulatapresentedto VaticanI a centuryago and the conclusions
reachedat Fribourgfourdecadesagoaresignificantnotbecausetheystateofficial
Catholicdoctrinebut becausebetweenthemthey statethe termsin whichthe
lastthreePopes,PiusXII, JohnXXIIIandPaulVI, expressthemselveson war.
JohnCourtneyMurray,summarizing(in 1959) the teachingof Pius XII
on war,reducedit to two generalpropositions:First,"allwarsof aggression,
whetherjust or unjust,fall underthe ban of moralproscription,"
and second,
to
defensive
war
is
in
admissible
both
repressinjustice morally
"a
principleand
in fact."10Herea warof self-defenseis understood
as
the
simply
oppositeof a
"warof aggression."A "warof aggression"
in
is, turn,equatedby the Pope
with anyoffensiveuse of force. Onlyself-defenseis a moralpossibility.This
modification
of the classicjustwardoctrine.11
is, as Murraynotes,a considerable
The flavorof Pius'positioncanbe judgedby this excerptfromhis 1956Christmasmessage:
There is no furtherroom for doubt about the purposesand the methodsthat lie
behind tankswhen they crashresoundinglyacrossfrontiers.. . . When all possible stages of negotiationand mediationare by-passed,and when the threat is
made to use atomicarmsto obtain concretedemands,whetherthese are justified
or not, it becomesclear that, in presentcircumstances,there may come into existence in a nation a situationin which all hope of avertingwar becomesvain.
In this situationa war of efficaciousself-defenseagainstunjust attacks,which is
undertakenwith hope of success,cannot be consideredillicit."*
Thoughin this statementPius severelylimits even the rightof self-defenseby
useof force,he rulesout all firstuseof force,whetherthe endssoughtarejustified or not. This not only echoesthe 1870 Postulataand the FribourgConventus;it makesinto officialCatholicteachingthe dichotomycontainedin the
Pact betweenfirst and secondresortto force in international
Kellogg-Briand
disputes. When tanks "crash resoundingly across frontiers," that is wrong in
itself.
Movingon to the nextpope,the essenceof thepositiontakenby JohnXXIII
on waris containedin a pregnantsentencefromPacemin Terris:"Thus,in this
*Ibid.
0oJohn CourtneyMurray,Moralityand Modern War (New York: Councilon Religion
and InternationalAffairs, 1959), pp. 9-10.
Slibid.,p. 9.
12Ibid.,p. 11.
JAMEST. JOHNSON
218
age which boastsof its atomic power, it no longer makes sense to maintain that
war is a fit instrumentwith which to repair the violation of justice." Modernwar pacifists, Catholic and otherwise, found in this sentence support for their
contention that all war today is immoral. But Paul Ramsey has convincingly
argued for a different interpretation,one which closely correspondsto that of
John's predecessorPius.13Classicjust war doctrinehad named three just causes
for war: to gain vindication against an offense, to retake something unjustly
taken, and to repel injury, i.e., resist an armed aggression. Ramsey notes that
Murray,in the same article I have cited, shows that Pius rejected the first two
of these reasons,leaving only self-defenseagainst attack as a just cause for resorting to militaryforce. The same thing is true of John, Ramseyargues. Careful attentionto his words in the sentencein question shows that John (as Ramsey put it) "left open the possibility that war might well be an instrumentfor
but is not yet accomplished."14
repellingan injusticethat is being perpetrated
ReadingJohn in this way, and not as a modern-warpacifist would readhim, puts
him in agreementnot only with his predecessor
on the papalthronebut also
with contemporaryinternationallaw.
The significanceof this agreementgrows when Paul VI's position is added
to those of Pius and John. With Paul even more than with John there is pres-
ent a strongrepudiation
of warfor the presentandfutureage. Addressing
the
UN GeneralAssemblyin 1965, Paul declared:
Sufficeit to recallthat the blood of millions of men, that countlessand unheardof sufferings,that uselessmassacresand fearfulruins have sealedthe pactuniting
you, with a vow which must changethe futurehistoryof the world: never again
war, war never again!"'
In this Paul implicitly made his own a somewhatutopian statementon war promulgatedby VaticanII: "It is our clear duty ... to work for the time when all
war can be completelyoutlawed by internationalconsent."16 But more directly
he recalledhis own earlierplea, given in Bombaysome months before, for universal disarmament,with the money to be saved to be spent for improving the
lot of the world's poor. But at the United Nations Paul clarified that earlier
plea by admittingthat he meant to refer to offensive arms: "So long as man remains the weak, changeableand even wicked being that he often shows himself
to be, defensive armswill, alas! be necessary.""17
8 Paul Ramsey,The Just War: Forceand PoliticalResponsibility(New York: Charles
Scribner'sSons, 1968), chap. 10, "When 'Just'War Is Not Justified."
14
Ibid.,p. 204.
15PopePaul VI, Addressto the GeneralAssemblyof the United Nations, October4,
1965. Published in Never Again War! (New York: Office of Public Information,
United Nations, 1965), p. 37.
16Documentsof VaticanII, ed. Walter M. Abbott (New York: Herder and Herder,
1966), p. 295.
' Never
Again War!, pp. 38-39.
IDEOLOGYAND THE JUS AD BELLUM
219
It is, of course,not at all remarkablethat a Pope should exhort the nations to
peace. But Paul went beyond the content of the traditionalChristianmessage
of reconcilliation,proclaimingthat the very existence of the UN makes war unnecessary,and making his own the words of John F. Kennedy: "Mankindmust
put an end to war, or war will put an end to mankind."18 Here the Christian
call to reconciliationappearsto have been overtakenby a secularutopian hope
for a world without war.
Like his immediatepredecessorson the papal throne, and like contemporary
internationallaw as well, Paul refuses to admit that any nation ever has the
right to initiate war for whatever cause, while he neverthelessallows for selfdefense. If the very existence of the United Nations proscribesthe first, the
wickednessof men necessitatesthe second. In Paul'sdoctrine the jus ad bellum
requiresthe same thing as does contemporaryinternationallaw: no first use of
force, though second use is permitted. The problems with this form of jus
ad bellum thus beset Christianas well as secularthought on war.
II
Granted that such problems do exist, and granted that they may fairly be
summedup in Meyrowitz'sphrase,the absenceof justice from the jus ad bellum,
we need to turn the problem of how to solve these problemsor, in a phrase,restore justice to the jus ad bellum.
The first step in this enterpriseis to understandhow the jus ad bellum came
to be so narrowlyconstrued. The roots are not in the twentieth centuryor even
the nineteenth century;they are in the response to classic just war doctrine as
formulatedin the late sixteenth and early seventeenth centuries by such theologians as Victoria,Molina, and Suarezand such seculartheoristsas Gentili and
Grotius. The former spell out the early modern scholastic doctrine on war,
unifying, clarifying, and even amplifying it beyond what was achieved in the
Middle Ages; the latter transformthis Neo-Scholasticdoctrine into a secular
discipline,internationallaw, by basing it in an autonomousnatureand the agreements among men, not in the will of a divine ruler of the universe. In spite
of their differencein value base, these five theoristsagree more than they differ,
and in them the seriousattemptto make war conformableto standardsof justice
reachesa zenith. But it is the responseto this attemptwhich is of interesthere,
not the theoriesset forth by these men in themselves. I wish to note two kinds
of response: immediateand long-term. Both have to do with the use of ideology
of the bellum jusum.
First, as to immediateresponses: Though the theoristswrote in good faith,
aiming at limiting war, the sovereignswho read them often used their thought
to provide an ideology for justifying resort to war for their own selfish ends.
One case in point is the requirementof proper authorityto wage war, which
Gentili and Grotiustransforminto the requirementthat war be a public contest,
Is
Ibid., p. 37.
220
JAMEST. JOHNSON
solemnly declared. So long as this aided sovereignsto suppresscivil wars and
engage in wars of conquestagainst lesser lords; that is, until the absolutiststate
was firmly established,this requirementcould be conveniently cited to prove
the justice of this particularuse of force, the injustice of that. With the absolutist state firmly established,however, other considerationsinduced sovereigns
to forget about the requirementof a solemn declarationof war, and it fell into
generaldisuse. To take anothercase in point: Victoria expresslyforbids a state
to make war to spreadreligion. Yet the Spanishcolonizersof the New World
evaded this point by looking to anotherone: the insistence,on Victoria'spart,
that peacefulmissionariesand tradersbe given free passagewhereverthey went.
If the Indiansresistedthe missionariesand the tradersand soldiers who accompanied them, force could justly be used- not to spread religion, indeed, but
to insure the right of free passage. A third case is provided by the idea of
simultaneousostensible justice. Beginning with Victoria the possibility is admitted that, while one side may actually be in the right in a given war, the
other side may, becauseof invincible ignorance,believe itself to be in the right
also. In such casesonly God could know who reallywas fighting justly. As for
the belligerents, they should be chastened by this realization that both sides
might seem equally to be in the right, and so they should be especiallyscrupulous in observingthe jus in bello, the rules of war. The doctrineof simultaneous
ostensiblejustice thus was intended to affect the conductof war, not the resort
to war. But princes who had read Machiavellias well as Victoria and Grotius
applied this doctrine another way. Any resort to war could be justified, they
argued, because invincible ignorance clouded men's minds and made all concerned in a dispute think they were right. This is the root of the doctrine of
competencede guerre, which says that every sovereign has the power to make
war on his judgment that his nation'sinterestsrequire it.
What these three cases show is that sovereigns were all too ready to use
classic just war doctrine to provide an ideology to excuse their resorting to
war, not, as was intended, as a set of moral limits on the use of war. Perhaps
the most importantphenomenonexhibiting this tendencywas the hundredyears
of war for religion that followed on the Reformation, including the German
civil war between Protestantand Catholicleagues,the FrenchWars of Religion,
the first English Civil War, and the Thirty Years' War. In all these conflicts
holy war advocateson either side sprayedstreamsof invective against their opponents as being in league with the devil-and thereforewithout a just cause
for fighting - while they cast themselves as children of righteousness- and
thus implicitly the possessorsof true justice. Here, in a curious twist, the doctrine of invincible ignoranceis used to prove the injustice of the other side (the
ignorant,anti-Christside). This tendency was even more pernicious than the
one which ended in the idea of competencede guerre, for holy war advocates
turned just war doctrine- a body of thought aimed at limiting war- into a
justificationof their own side to do whateverit could to win, sure that justice
was on its side. Just war doctrine was thus turned into an apologetic for unlimited ideological war.
IDEOLOGY
AND THE JUS AD BELLUM
221
There were, besides these reactions,of courseother immediatereactionsof a
more positive sort- those which took the doctrine as it was intended, as an
attempt to subject war to the rule of law and morality. But in the end this
latter type of response was deeply conditioned by the kind of reaction we have
been discussing. In the long run the excesses of those who had used just war
doctrineas an ideology for their own purposesled theoristsof internationallaw
to attempt to purge from war doctrine those elements which were most amenable to ideologicalmisuse. The concept of just cause was foremostamong these.
In an effort to avoid ideologicalrationalizingof war, the concept of justice was
removed from the jus ad bellum.
This metamorphosisdid not, of course, happen overnight. But between
Grotius, writing in the early seventeenthcentury, and the so-called "traditionalist" internationallawyers, writing mostly in the last half of the nineteenth
century,the change has taken place. There is in internationallaw no longer a
War
"justwar doctrine,"in the classic sense, by the time of the Franco-Prussian
of 1870.
I have claimed that, in large part, the attempt to avert possible ideological
use of just war doctrinewas the cause for the demise of the classicdoctrine. But
just war doctrine had always, throughoutits development,had this ideological
component which modern theorists have sought to expunge. Therefore we
need to back off from the immediateresponsesof sovereignswho used just war
doctrine to provide justification for serving their own ends. We need to ask
the far broaderquestion of the natureof the ideological component of the just
war doctrine,and particularlyof the jus ad bellum, before it became a sticking
point. This in turn raises the question of the nature of internationallaw and
the ways in which just war doctrinehas been and is now binding. Finally, this
will enable us to addressthe fundamentalproblem raised earlier in this paper:
how can the contemporaryjus ad bellum be reformedso as to include the elements of justice presentlylacking in it?
In the first place, classic just war doctrine is inherentlyideological. I have
been using this term ideology in its negative sense only thus far: as applying to
beliefs or behaviorof a partisannature and with which we do not agree. In
this sense we who are not John Birchers or Communistsspeak, critically, of
John Birch Society ideology or Communistideology. But there is also a neutral
sense to the term ideology. This sense is the one intended when we use this
term to denote belief structureswhich are discretelybased and different from
each other. This usage might also be called the "relativistic"sense of the term
ideology. It is in this sense in which I wish now to speak of just war doctrine
as inherentlyideological.
We must not forget that classic just war doctrine developed within the
ideological limits set by Christendom. Two main factors defined these limits.
The first was theological: Christiandoctrineas it took shape in the West. The
second was geographical: the boundariesof Europe. Within these two sets of
limits Christendomcame into being - a communitydiverse in languages,physi-
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JAMEST. JOHNSON
cal types, local customs,and many other respects,but united in belief, in moral
code, in scholarship,and in certain largercustomswhich affected the well-being
of Christendomas a whole - among them the mode of waging war. We may
speak of an ideological unity within this community; indeed, the ideological
unity made communitypossible. When just war doctrinedevelopedwithin this
community it incorporatedthe values resident in the common ideology--not
Christianideology but Christendomideology. Because it developed out of the
community as a whole and not merely out of Christiantheology or canon law
this war doctrine had a relevanceand an adequacy,both moral and political, it
could not have had otherwise. There is considerableevidence that so long as
Christendomexisted the then-developingjust war doctrine did effectively limit
conflictswithin the community. Here the ideologicalnatureof just war doctrine
worked in its favor. This doctrine then expressed "communitylaw": the law
of coordination.
Sociologistsof law define three basic types of law, of which this is one.19
Its most salient characteristicis given by the nature of community itself: a
grouping of people sharinga common end who all are internallydriven to seek
that end and help one anotherto do so. The family,especiallyin its classicGreek
and Roman form, is often cited as a nearly pure type of community;the medieval monasteryis anotherexample. In communitythe co-ordinationof effort
is the primaryfunction of the law; since everyone agrees as to the ends to be
sought, law co-ordinatestheir activities so as to maximize attainmentof those
ends.
At the opposite extremefrom communitylaw, the law of co-ordination,stands
the law of power, or "societylaw." The outstandingcharacteristicof this kind
of law is the use of power-usually military force--by an elite to subjugate
the other members of the society and ensure that they will co-operatein producing the ends the elite wish for themselves. Here "might makes right"
is a truism. A slave-holdingaristocracyis one example of this; Hitler's "New
Order"is another.
Between these two extremes set by the law of co-ordinationand the law of
power stands a third kind of law, that of hybrid groups: the law of reciprocity.
Considerthe case of a society in which there exists two groups (two communities) of equal strength. Neither has the power to impose its will upon the
other. Within each group community law has sway, but in the society as a
whole the law of reciprocity,not either of the two extreme forms, must obtain.
A state of affairs in which equilibriumof power makes it possible for power
to be ignored is thus the most outstandingcharacteristicof hybridgroups (or to
use the usual Americanterm, a "pluralisticsociety"). ContemporaryAmerican
society is an example of hybrid grouping, and much of American law is recipThe Frontiersof
1"For fuller discussionof this perspectivesee Georg Schwarzenberger,
InternationalLaw (London: Stevensand Sons Ltd., 1962), chap. I, "The Three Types of
Law."
IDEOLOGYAND THE JUS AD BELLUM
223
rocal in nature,with everyonecontent so long as he believes he has received at
least as much as he has given.
What is the place of ideology vis-a-vis each of these types of human grouping, with their correspondingkinds of law? In communitiesthe same ideology
is sharedby all; this is what is meantby all wanting the same ends. In "societies"
the ideology of the elite is imposed upon those subjugated. Thus Hitler imposed Nazism upon the conqueredpeoples of Europe,whatevertheir own preferencesmight have been. In hybridgroupsthereco-exist simultaneouslya plurality
of ideologies,with one for each communityparticipatingin the grouping. Here
the impositionof ideologyis frustrated
by a balanceof power,andcommunity
ideologytends,in the groupas a whole,to takea backseatto thoseneedsand
desiresamenableto satisfaction
by bartering.Of course,even in hybridgroups
therearesomeendsheldin common(hencethegrouping);thesetendto produce
a groupideologyin whichelementsof particular
communityideologiesmayfind
expression.
of comReturningnowto thequestionof justwardoctrineas a manifestation
the peculiarlyideologicalcomponentof this docmunitylaw in Christendom,
trineis its notionof justice,conditionedboth by theologicaland philosophical
heritageand by commoncustom. The destructionof classicjust war doctrine
- the removalof the componentof justice-- movesthroughtwo stages,which
transform
the communityof Christendom
into the hybridgroupingwhichis internationalsocietytoday.
The firststagewasthe destruction
of the theological,and to a lesserextent,
thephilosophical
which
characterized
Christendom.The immediateresults
unity
of thishavealreadybeendiscussed:the creationof two "communities,"
Catholic
andProtestant,
with conflictingbeliefswhichweretakento be mutuallyexclusive. The conceptof justcausewas madeover into thatof holycause(for, as
one Puritanpreacherput it, Whosecauseis justerthanGod's?20),andjustwar
doctrinebecamean ideologicalweaponto be usedfor partisanpurposes.Here
the ideologicalcharacter
of the doctrineshiftswhenthe unifiedcommunitysplits
into two mutuallyantipatheticcommunities--each with, however,the same
heritagein Christendom.With this splitEuropeceasedto be a communityand
becamea hybridgroup,andlaw of co-ordination
hadto give way to law of reSecular
naturalist
international
ciprocity.
lawyerseffectedthis change,andthey
did so by eliminatingthe conceptof justcausewhichhad so easilybeenmade
to servenarrow,partisanends. The jus ad bellumconceivedas competencede
guerrewas one result; balance-of-power
politics (reciprocityin action) was
another.
The secondstage in the destructionof classicjust war doctrineis reached
whenthe geographical
boundaries
of Christendom
ceasedto containall relevant
international
intercourse.I wish hereto skip overa stagein whichthe law of
power obtained in Europeanrelations with her colonies and consider what has
' William
Gouge, Gods Three Arrowes,IlI. The ChurchesConquestover the Sword
(London: George Miller for Edward Brewster, 1631), p. 215.
224
JAMEST. JOHNSON
happenedwith the end of the colonialera (the beginning of this end comes when
Japan begins to emerge as a world power). This is the stage brought mainly
by the twentieth century. The standardof "civilization,"which had replaced
"justice"in traditionalistinternationallaw as the main limiting principleon war,
ceased to obtain when "uncivilized"nations were admitted to full status in the
world. But becausemany of the new nations were, in regard to power, hopelessly inferior to the "greatpowers" of Europe, the United States, Japan and
China, the doctrine of competencede guerre no longer sufficed as an adequate
statementof reciprocallaw on war. This doctrinehad,after all, made colonialism
possible by permittingstrong states to subjugateweak ones in the name of overriding national interest. The twentieth century has thus seen a cumulativeattempt to restate the law of reciprocityon the right of resort to war, moving
through the League of Nations Covenant, the Kellogg-BriandPact, and the
United Nations Charter,with mutual nonaggressiontreatiesand mutual defense
alliancesspringingup in train. The outlawingof first use of force and allowing
of seconduse per se has been, as I have alreadynoted, the result.
A certain irony exists with regardto Christiandoctrine on war during this
period of dissolutionof classicjust war doctrine. There is no discreteand recognizable Protestantwar doctrine,except among the pacifist sects, after the Reformation. In a masterpieceof syncretism,the state- and throughthe state, internationallaw - is allowed to speak for Protestants. On the other hand, by holding themselves aloof from the modern secular state Roman Catholicismmaintained a just war doctrinefundamentallythe same as that of the sixteeth-century
Neo-Scholastics.But in a hybrid-groupworld this doctrinewas but one ideology's
expressionon how to conduct war and was not acceptedas binding by members
of other groups. When, in the late nineteenthand early twentieth centuries,the
Roman Churchbegan to come outside its cloistersto meet the world, it began to
abandonits classicwar doctrineand to speak in the languageof internationallaw
- which, no doubt, it saw as the "communitylaw" of the world. The
language
of recent popes makes this last abundantlyclear. But this world is not a community, and it is the law of reciprocitywhich holds foremost place in international law, not the law of co-ordination. Thus the Churchmade a fundamental
mistake,and her war doctrinewas weakenedto conform to contemporaryinternationallaw.
III
But are these the only possible alternatives: a community law which those
professingother ideologies regardas irrelevantfor them, or a law of reciprocity
which is so narrowlyconstrued that it has an altogether arbitraryconcept of
right and is both morally and politically inadequate? I would like to suggest
a third alternative: a jus ad bellum of a reciprocalnaturewhich, insteadof being
reductionist,positively seeks to incorporateelements of diverse communitylaws
which are in agreement.That is, you will recall,one of the functionsof reciprocal
IDEOLOGYAND THE JUS AD BELLUM
225
law in a hybridgrouping: to foster the achievementof ends on the desirability
of which the diversecommunitiesin the grouping agree. A jus ad bellum would
result which would contain a positive concept of justice and which would be
insured by the same principle as that which underlies barter,the most primitive form of reciprocity:all partiesget at least as much value as they give.
Now, grantedthat such a jus ad bellum is a formal possibility, is it actually
possiblealso? I will answerthis in two ways.
First,the contemporaryjus in bello, so far as it functionsto limit the conduct
of war, is a prime example of reciprocalinternationallaw in action. This reciprocityhas both positive and negativeeffects,however: If use of nuclearweapons
or poison gases or germ warfareis avoidedbecausethe other side would retaliate
in kind, so also certainkinds of acts by one's enemy are taken as giving permission to strike back in the same way. This latter is the oft-invoked criterion of
"militarynecessity."But so far as the law works positively to limit war, it suggests that a jus ad bellum could also be framed incorporatinga positive, that is
mutuallybeneficial and not mutuallydetrimental,reciprocity.
Second,some work has alreadybeen done in this direction. I could here develop examples of attempts to link together the nations of the world with ties
of trade and mutual dependence. These are certainlyone way of creating a de
facto recognitionof common interest even among diverse communitiesof men.
But I wish to point more emphaticallyto a theoreticalattempt in this direction,
becauseit strikes closer to the heart of the matter,in its effort to find elements
which transcendthe ideological schisms that beset internationalrelations. I am
speaking of Reinhold Niebuhr's The Structureof Nations and Empires, subtitled A Study of the RecurringPatternsand Problemsof the Political Orderin
Relation to the Unique Problems of the Nuclear Age. Here Niebuhr investigated, both in history and in the contemporaryworld, the anatomy of empire,
the nature of political authority and dominion, the expression of community
in different political forms, and the place of universalismand utopianism in
relation to world order. In the end he sought to transcendthe dichotomies
he had noted in the world by rising to a discussionof the possibilitiesof human
freedom. Niebuhr's intent in The Structureof Nations and Empires is one
extremelycongenialto the intent I have tried to expressin this paper. But still,
Niebuhr overlooked the factor of reciprocityand ultimately left it behind entirely, ending up caught on a dichotomy typical of his mode of thought: The
dichotomybetween the "creative"and the "destructive"possibilities of freedom.
This conclusion was presaged in his earlier distinction between "community"
and "dominion,"as he defines them. These terms,in Niebuhr'susage,correspond
broadly to the distinction made in sociology of law between community law,
the law of co-ordination,and society law, the law of power. Such a distinction
also correspondscloselyto the assumptionsof the Cold War period,out of which
this book of Niebuhr's comes. By these assumptionsthe Western and Eastern
blocs could have nothing in common except perpetualmutual hostility; so far as
each side embodied"community,"it neverthelessexcludedthe other side thereby.
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JAMEST. JOHNSON
Thus, the true ideal of community to which Niebuhr points, embodied in the
City of God, is never reached by either of the two great Cold War powers or
their associatedblocs; rather each defines its own "community"by an ideology
which rules out intercoursewith the other bloc. With no transcendentcommunity encompassingboth blocs and uniting them, Niebuhr- along with Cold
War theorists generally- is driven to questions of what he calls "dominion,"
which are fundamentallythose of power politics.
But Niebuhr does not treat the intermediatereality which describes most
human interrelations: the fact of hybridgrouping, with its correspondingform
of law, the law of reciprocity. The very mindset of the Cold War era, in which
Niebuhr like other brilliant figures participated,closes out the possibility of
recognizing this third state. But becausehe does not recognize the possibility
of the existence of hybrid groupings in internationalrelations,Niebuhr's conclusions in The Structureof Nations and Empiresremain in the form of opposites- "creative"vs. "destructive"freedom- instead of pointing a way to synthesizing the opposites into some sort of greater unity. The same can be said
of the state in which he leaves the opposition between United States and USSR
in this book; having disposedof "the myth of world government"years before,
he does not offer here any order which would overreachand diminish the divisions perpetuatedby the Cold War mindset. Indeed,the practicalpolitics associated with Christianrealism have no reason in theory to go beyond the interests and goals of the individualstate and every reasonto disregardthose of other
statestowardwhich one's own nation is hostile,even when a communityof interests and goals obtains. The outcome of the argumentin The Structureof Nations and Empiresthus is rooted deeply in Niebuhr's theoryof statecraft. Since
Niebuhr avoids treatmentof hybrid grouping as a possibility in international
relations,his conclusion cannot be used to further a search for a reciprocityof
interactionamong nations based on common--or at least non-contradictory
national interests and policy goals. This does not, however, remove the value
of this book. Rather it argues that some attempt needs to be made to retrace
Niebuhr's steps with the natureof reciprocalinteractionin mind and with the
goal of reciprocityamong nations a realisticend short of, though productiveof,
greatercommunity.
This suggests one line of attack on the problem of restoring justice to the
jus ad bellum. Another method, not out of harmonywith this one, is to investigate the natureof the justice contained in the classic Christianjust war doctrine
and attempt to rephraseit in such a way as to state a universalmoralityso that
differing national communities will recognize it as expressing their own respective interestsand ends. Something of this sort I take to be Paul Ramsey's
method in his thoughton war. One drawbackof this procedureis obvious: the
possibility of appearingnot to take sufficiently into account contemporarynational values but seeming to remain bound to a tradition alien to most of the
people of the world. There are two reasons why such a possibility is not a
necessaryobstacle to a procedurelike Ramsey's. First, so far as the tradition
IDEOLOGYAND THE JUS AD BELLUM
227
embodiesreal justice, it ought to be expressiblein ways agreeableto all. Second,
contemporaryinternationallaw is importantlyrooted in just war tradition. Unless internationallaw is itself alien to the non-westernpeoples of the world, any
search into the meaning of the justice contained in classic Christian just war
doctrinecan only furtherthe cause of a just internationallegal order. But there
is good reasonalso for combining this line of attackwith that suggestedby Niebuhr'sargument. If we were to limit ourselvesto the searchfor reciprocityonly,
there is every possibility that the thresholdof justice reachedwould not be particularlyhigh. Attention to the level of justiceexpectedin classicjust war theory
would imply that efforts be continuouslymade to raise that threshold to the
maximumpossiblethroughreciprocalinteraction,while it would not imply denial
that what is present at the lower threshold is in fact justice, however limited.
To take an example from the jus in bello, the non-use of poison gases in war is
groundedin the idea of reciprocity. It does not state all that must be said about
the just conductof war. But what it does say is, so far as it goes, just.
What sort of jus ad bellum would result from the applicationof these two
harmoniousmethodologiesto which I have pointed? The most fundamentalthing
to say is that such a jus ad bellum could not be limited to the first strike/second
strike dichotomy,prohibiting the former and permitting the latter. A doctrine
based in reciprocitymust, on the contrary,give more weight to the question of
vital national interest. Such interests,as perceived by sovereigns,have universally been taken to give cause for war. But to avoid return to the days of comphtence de guerre a reconstructeddoctrine must state these interests in ways
which link each individual nation to all the others in the world. There may
indeed be occasionswhen it is proper for two nations to go to war. But these
ought not to depend on national interest narrowly construed. The recognition of reciprocityof interestsrequiresthat one's own concernsbe placed in the
balanceof those of other affected parties. To go further,if the per se use of
force ceasesto be what is outlawed,the way is opened for legitimateuse of force
to support interests less than vital. A reconstructedjus ad bellum must limit
and channel such uses. Though this might seem retrogressionto some, lacking
as it does a clearmoralcommitmentto the outlawryof force, it representsin fact
an advancefrom the presentstatusof the jus ad bellum,which is so out of touch
with both political reality and moral imperativeas to be both no brakeon uses
of force short of declared"war"and no guaranteeof justice in the international
order. Such a reconstructionwould place the focus where it should be: not on
the use of force, which is but a means,but ratheron policy decisionsthemselves,
which express ends. The characterof these latter is the basic issue the jus ad
bellum ought to address,with questions of forceful means- whether to use
force, how much force to use, where, and how long and at what cost- vital
but secondary.
These last paragraphshave been necessarilyprogrammaticand suggestive
ratherthan comprehensiveand conclusive. No single personcould authorsuch a
revisedjus ad bellum as I am here proposing;it must be the productof negotia-
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JAMEST. JOHNSON
tion and interaction. My main concern here has not been to short-circuitthat
processbut insteadto performtwo tasksnecessaryto begin the process: to show
the shortcomingsof the existing doctrine of jus ad bellum in internationallaw
and authoritativereligious teaching, and to indicate some steps pointing in a
direction which, if followed carefully,would lead to a reconstructedconcept of
the right to use force in internationaldisputes,a concept at once justerand politically more adequate.21
1
For a fuller critique of the contemporary status of the jus ad bellum see my article,
"Toward Reconstructing the Jus Ad Bellum," in the forthcoming Monist number on the
subject, "The Philosophy of War" (C57/4 [Oct., 1973]).